Stipe v. Willingham
| Citation | 143 S.E. 614,38 Ga.App. 244 |
| Decision Date | 12 June 1928 |
| Docket Number | 18885. |
| Parties | STIPE v. WILLINGHAM. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
This trover action is in the usual form, and the general demurrer to the petition is not good; the logs sought to be recovered were described with sufficient particularity.
The exceptions to the charge of the court show no reversible error; the evidence supports the verdict, and for no reason assigned should the judgment be reversed.
Additional Syllabus by Editorial Staff.
In action of trover and bail for timber cut and removed from plaintiff's land, charge to find defendants liable if they took logs off land, and were instrumental in possessing logs, and took them from land of plaintiff, held not error as instructing jury that "any possession" of logs would make defendants liable.
In action of trover and bail for timber cut and removed from plaintiff's land, charge that defendant would be liable to true owner of logs for damages, if he authorized another to cut and remove logs for consideration, held not error as depriving defendant of right to have jury consider amount of timber and limiting jury to plaintiff's side of case.
In action of trover and bail for timber cut and removed from plaintiff's land, charge that defendant would not be liable if he had nothing to do with handling and removing logs, and received no compensation therefor, held not error as preventing jury from considering question whether only portion of logs were taken, in absence of request for fuller instructions.
In action of trover and bail for timber cut and removed from plaintiff's land, charge that, if defendants took possession and converted logs, jury should determine worth of logs, held not error as failing to submit issue as to number of logs taken or cut by defendant, in absence of request for fuller instructions.
In action of trover and bail for timber cut and removed from plaintiff's land, charge that land line, if fixed by judgment of court, would be true line, and that logs belonged to owner of land from which they came, held not erroneous on ground that there was issue as to where logs came from and who cut them.
Charge in trover action to believe witnesses entitled to belief on issues of fact and to determine whether plaintiff was entitled to recover held not erroneous as failing to charge contentions negatively and affirmatively.
Charge in trover action to believe witnesses entitled to belief on issues of fact and to determine whether plaintiff was entitled to recover held not erroneous as unduly emphasizing plaintiff's side of case and preventing consideration of defenses raised by evidence.
Charge in trover action, to believe witnesses entitled to belief on issues of fact and to determine whether plaintiff was entitled to recover, held not erroneous as omitting contentions of defendants.
Charge in trover action, to believe witnesses entitled to belief on issues of fact, and to determine whether plaintiff was entitled to recover, held not erroneous as expressing opinion on what had been proved.
Fuller instructions on issues, if desired by defendant, should have been requested.
Charge, in action in trover, that, if jury did not believe plaintiff was entitled to recover for failure to make case by preponderance of evidence, form of verdict should be for defendant, held not erroneous as denying defendant right to have jury consider defenses presented by evidence and as amounting to directed verdict for plaintiff, in absence of request to charge.
Error from Superior Court, Houston County; H. A. Mathews, Judge.
Action by C. B. Willingham against H. N. Stipe and another. Judgment for plaintiff, and defendant named brings error. Affirmed.
M. Kunz, of Perry, and M. Felton Hatcher, of Macon, for plaintiff in error.
Duncan & Nunn, of Perry, for defendant in error.
C. B. Willingham brought an action in trover and bail against H. N. Stipe and T. M. Sizemore, and procured a verdict against Stipe alone for $137.95. The court overruled Stipe's motion for a new trial, based upon the general grounds and upon other grounds herein indicated, and he excepted.
The main question presented by the record arises out of a dispute as to whether or not all, or any, or only a portion, of certain trees alleged to have been cut by Sizemore was located on the land of Willingham or on the adjoining land of Stipe; it appearing that Stipe sold some timber to Sizemore, and that the latter cut and carried away some timber from a location near the dividing line of the land of Willingham and Stipe.
1. A careful reading of the record satisfied us that the evidence supports the verdict, and that the court did not err in overruling the general grounds of the motion for a new trial.
2. The trover action is in the usual form, and clearly the general demurrer to the petition is without merit.
3. It is insisted by demurrer that the logs sought to be recovered were not described in the petition with sufficient particularity and definiteness. The description follows:
We are of the opinion that the description is sufficient to withstand the demurrer. See, in this connection, Leitner v. Strickland, 89 Ga. 363 (1), 15 S.E. 469, which reads as follows:
"In an action of trover for the recovery of timber and logs, a description in the declaration in the following terms is sufficiently certain: 'That hewn timber and those round logs which were cut from the land of petitioner and from the land of A. D. Cone by one B. J. Reese, and were by said Reese left and deposited in the waters of the great Ogeechee river at a point not far from the bridge of the Macon & Atlantic Railroad, and being that timber and logs referred to in the contract between petitioner and said Reese, dated on the 15th day of April, 1891, and recorded in Book L. folio 169, in the office of the clerk of the superior court of Bulloch county, said state, July 7, 1891, to which logs and timber petitioner claims title."'
See, also, Pepper v. James, 7 Ga.App. 518 (1), 67 S.E. 218; Redd v. Lathem, 28 Ga.App. 64, 110 S.E. 322.
4. The excerpt from the charge of the court set out in ground 4 of the motion for a new trial undertakes to state the conditions under which a recovery might be had. This excerpt is not erroneous, for the reason that the evidence did not justify the charge, or because it failed to show that "the logs were in the possession of Stipe," or because it failed to...
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